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2008 DIGILAW 1494 (ALL)

Ambawati Pandey v. Sudhira Ghosal

2008-08-04

PANKAJ MITHAL

body2008
ORDER:- Heard Sri S. C. Tripathi learned counsel for defendant/appellants and Sri Saurabh Srivastava holding brief of Sri M. B. Saxena, learned counsel appearing for plaintiff/respondent. 2. The appeal is in connection with the rights of the parties in respect of a strip of open land which is a 5ft. wide passage. 3. The Maharaja and Maharani of Kasimbazar were the owners of a piece of land which included the above 5 ft. wide passage in dispute (hereinafter referred to as the "disputed passage"). They transferred a part of the said land vide two sale deeds dated 19-3-1960 and 29-3-1960 (ext. 4 and 2 respectively) in favour of the plaintiff Dr.J. M. Ghosal now represented by his heirs and legal representatives. The said sale deed provided that the vendors shall keep open a strip of land 5 ft. wide on the western side of the land so transferred to the plaintiff for all times to come and the plaintiff shall have unrestricted right of way over it. After about a week thereafter the Maharaja and Maharani of Kasimbazar transferred another portion of land and even the disputed passage vide sale deed dated 28-3-60 (ext. 3) in favour of one Vishwanath Sahu but with a covenant that said Vishwanath Sahu shall for all times to come keep the disputed passage open to sky and shall allow unrestricted right of way over it to the plaintiff Dr. J. M. Ghosal and one Devi Prasad who was the owner of another adjoining piece of land. The said Vishwanath Sahu transferred his rights in the land and the disputed passage so purchased by him in favour of Smt. Mohan Devi and Smt. Ram Pyari vide sale deed dated 31-5-63 (ext. A-2) who in turn transferred the same to the defendants through sale deed dated 4-12-63 (ext. A-1). Thus the defendants stepped into the shoes of aforesaid Vishwanath Sahu and acquired rights over the disputed passage subject to the covenant contained in the sale deed dated 28-3-60 though no such condition was imposed under the last sale deed. 4. A-2) who in turn transferred the same to the defendants through sale deed dated 4-12-63 (ext. A-1). Thus the defendants stepped into the shoes of aforesaid Vishwanath Sahu and acquired rights over the disputed passage subject to the covenant contained in the sale deed dated 28-3-60 though no such condition was imposed under the last sale deed. 4. In the above background the plaintiff instituted a suit for permanent injunction restraining the defendants from raising a wall in the disputed passage or any unauthorised construction thereof so as to close the opening of the plaintiffs towards the disputed passage and for mandatory injunction demolition of a wall which has already been raised by the defendants in the disputed passage. The suit was resisted by the defendants by alleging that the plaintiff has no ownership right over the disputed passage and that the plaintiff has no right to have openings of his house towards the said passage. The construction of the wall by the defendants does not in any way affect the plaintiffs rights of way through the said passage and that the construction of the said wall is necessary to restrict the plaintiff from opening the doors and windows of his house towards the said passage. 5. The suit was dismissed by the court of first instance by holding that the defendants are the owners of the disputed passage and, therefore no restriction on their right to use the said passage in the manner they wanted to use it can be imposed particularly when no such restriction has been placed upon their rights in the sale deed by which they have purchased the same from the previous owner Smt. Mohan Devi and Smt. Ram Pyari. The plaintiff appealed against the judgment and order of the lower court. The appeal has been allowed by the lower appellate court and the suit of the plaintiff has been decreed both for mandatory injunction and permanent injunction as prayed for after setting aside the judgment and order of the court below. 6. It is against the judgment, order and decree passed by the lower appellate court that the defendants have come up in this second appeal. The appeal was admitted on 21-4- 76. However, at the time of admission no substantial question of law was formulated. 6. It is against the judgment, order and decree passed by the lower appellate court that the defendants have come up in this second appeal. The appeal was admitted on 21-4- 76. However, at the time of admission no substantial question of law was formulated. In fact at the relevant time there was no necessity under law for formulating substantial question of law as at that time a second appeal could have been entertained even on a question of law. In view of Section 97(m) of the C.P.C. Amendment Act No.4 of 1976 which had come into force w.e.f. 2-2-77, though there is no necessity of framing any substantial question of law in a second appeal which has been admitted prior to the enforcement of the aforesaid Act, nonetheless with the consent and agreement of the parties, the following substantial question of law is formulated for determination in this second appeal: Whether the right of unrestricted way given to the plaintiff over the disputed passage by the Maharaja and Maharani, Kasimbazar as per the sale deed dated 19-3-60 (ext. 4) would also include the light to open the windows and door towards the passage particularly when the ownership of the disputed passage has been transferred by the Maharaja and Maharani of Kasimbazar in favour of one Vishwanath Sahu from whom the defendants have acquired the title over the same? 7. A bare reading of the sale deed dated 19-3-60 (ext. 4) executed by the Maharaja and Maharani of Kasimbazar in favour of the plaintiff reveals that under the said sale deed only a piece of land on which now exists the house of the plaintiff was transferred. The plaintiff was not given any ownership right or title in the disputed passage except for the right to use the same and Maharaja and Maharani covenanted to keep the disputed passage open to sky for all times to come. Thus, it is apparent that the plaintiff had never acquired ownership rights in the disputed passage except for the right of way over it. Thus, it is apparent that the plaintiff had never acquired ownership rights in the disputed passage except for the right of way over it. The Maharaja and Maharani were conscious of the covenant contained in the sale deed dated 19-3-60 and, therefore, while transferring the other portion of the land and the disputed passage in their ownership to Vishwanath Sahu, they in all fairness provided that Vishwanath Sahu shall also keep the passage free for use by the plaintiff even though the title of the passage was being passed over to him. The defendants have acquired rights in the land and the disputed passage from the transferees of Vishwanath Sahu but without any restriction or condition. As such, defendants acquired full ownership right over the disputed passage. 8. In view of aforesaid sale deeds on record which are clear and unambiguous, the conclusion is inevitable that the owner of the disputed passage are •none other than the defendants and the plaintiff at best has only a right of way over it. Such right of way is distinct from the easementary right of light and air. It obviously, does not include within its fold any such right of light and air unless an easement to this effect is established. The plaintiff has not pleaded or established any such ease-mentary right. 9. Besides, the defendants have purchased the land and the disputed passage as absolute owners independent of the sale made in favour of the plaintiff by Maharaja/ Maharani of Kasimbazar. Therefore, the defendants are not even bound by any covenant which may apply to the Maharaja/ Maharani of Kasimbazar and for any infringement of the same the remedy of the plaintiff is by way of claim of damages and not otherwise. 10. The said passage admittedly leads only to a piece of land/house purchased by the defendants and to nowhere else and at the relevant time there existed no doors and windows of the plaintiff towards the said passage. The main entrance of the plaintiff is on main road. Any right which was not there or was given up can not be created or re-established by permitting the plaintiff to open doors and windows now through this suit for injunction. The main entrance of the plaintiff is on main road. Any right which was not there or was given up can not be created or re-established by permitting the plaintiff to open doors and windows now through this suit for injunction. The object of giving right of way to the plaintiff over the disputed passage was only for the purpose to enable him to have excess to the entire depth of his house which runs parallel to the disputed passage for getting it white washed and repaired and for no other purpose. Thus, the plaintiffs right of way over the disputed passage would not extend so as to authorise him to open doors and windows in the passage to have free and extra air and light. 11. Accordingly, the plaintiff has no right to open any door or window of his house towards the said passage. 12. In view of aforesaid facts and circumstances, the question of law formulated above is answered in favour of the defendant/respondents and it is held that the right granted to the plaintiff/respondent for using the disputed passage gives him only right of way and no further right to open any window or door towards the disputed passage. 13. In view of above, the appeal is partly allowed and the judgment, order and decree of the lower appellate court dated 16-2-76 passed by 1st Additional District Judge, Varanasi in Civil Appeal No. 60 of 1973 is modified and it is provided that the plaintiff is not entitled to open any door or window of his house towards the disputed passage and at the same time neither of the parties are entitled to put any obstruction in the disputed passage by constructing any wall or otherwise. 14. Accordingly, the appeal stands disposed of with no orders as to costs. Appeal dismissed.